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[Sheriff-Substitute of Selkirkshire.
Held ( diss. Lord Craighill) that where in an action in a Sheriff Court, which when raised is of a value exceeding £25, the sum sued for is restricted by the pursuer to an amount under that sum before the record is closed, an appeal to the Court of Session is incompetent, in respect that the cause is not of a value exceeding £25.
Opinions ( per Lord Young and Lord Ruther—furd Clark) that litiscontestation takes place when the record is closed, and not when defences are lodged.
In August 1884 Mary Cairns raised an action of damages in the Sheriff Court at Selkirk against John Murray, manager of the South of Scotland Trade Protection Association, for alleged unjustifiable insertion in the “black list” issued by the association, of her name as a defaulting debtor to one of its members. She concluded for payment of £50 as damages. Murray defended the action.
The Sheriff having on 19th September appointed parties to adjust the record on the first Court day, the pursuer on 3d October lodged a minute restricting
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the conclusions of the action to £20. The interlocutor-sheet bore the following entries:— “ Selkirk, 3 d October 1884.—Allows the pursuer to restrict the conclusion of the petition to the sum of £20 sterling.”
“ Selkirk, 3 d October 1884.—Record closed.”
Thereafter a proof was allowed, as the result of which the Sheriff-Substitute ( Spittal) decerned against the defender “in terms of the conclusions of the summons.” The defender appealed to the Court of Session.
When the cause appeared in the Single Bills, the pursuer objected to the competency of the appeal, in respect that the value of the cause was £25.
Argued for appellant—The cause when raised was of an appealable value, and was so when the record was closed—for the minute of restriction and the closing were of the same date—and certainly after defences were lodged. It was not competent for the pursuer to wait till he had seen the defences, and then restrict, with the effect of cutting off the defender's right of appeal, for he might thereby be prejudiced in his defence, which he had made on the footing of the cause being of a higher value—Mackay's Practice, i. 264; Buie v. Stevenson, December 5, 1863, 2 Macph. 208.
Replied for respondent—It was competent to restrict up to the time when the defender might be prejudiced in his defence, and that could be only when the record was closed. The order in which the interlocutors were written showed that the Sheriff meant the restriction to precede the closing of the record.
At advising—
I therefore think we would be giving effect to the reason and policy—and the only intelligible and stateable reason and policy—of the Act as to the competency of appeals by finding this appeal incompetent. It is true that if you litigate, and take a judgment in a cause of higher value than £25, and something—say the death of a party—intervenes, and the value is afterwards restricted—as in Buie's case—other considerations come in. I do not say now how I might decide in such a case. In Buie's case the Judges who had to decide such a question differed in opinion, and delivered opinions extending over many pages. But we have no case of that kind here. The facts here simply are that before litiscontestation—according to my view—the pursuer has exercised his right to restrict his conclusion from £50 to £20, and the proceedings have been conducted and the judgment given on that footing.
I agree with Lord Rutherfurd Clark that the objection to the competency of this appeal is well founded.
The
The Court sustained the objection and dismissed the appeal.
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Counsel for Defender (Appellant)— M'Kechnie. Agents— Edward Nish, L. A.